UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS J. SANTOS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, District
Judge. (2:03-cr-00194-2)
Submitted: August 27, 2007 Decided: September 4, 2007
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jacqueline A. Hallinan, HALLINAN LAW OFFICES, PLLC, Charleston,
West Virginia, for Appellant. Susan Marie Arnold, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos J. Santos appeals the eighty-seven month sentence
imposed on resentencing for aggravated bank robbery, 18 U.S.C.
§ 2113(a), (d) (2000). See United States v. Savoca, Nos. 04-4886,
04-4890, 2005 WL 3076933 (4th Cir. Nov. 17, 2005) (unpublished),
cert. denied, 546 U.S. 1203 (2006). On appeal, Santos’ counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious issues on appeal,
but asking this court to review the district court’s calculation of
the Guidelines range, the court’s refusal to depart downward from
the Guidelines range, and the reasonableness of the sentence.
Santos was notified of the opportunity to file a pro se
supplemental brief, but has failed to do so. Because our review of
the record discloses no reversible error, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), a
district court is no longer bound by the range prescribed by the
Sentencing Guidelines. United States v. Hughes, 401 F.3d 540, 546-
47 (4th Cir. 2005). A court must initially calculate the
appropriate Guidelines range, making any appropriate factual
findings. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.
2006). The court then considers the resulting advisory Guidelines
range in conjunction with the factors set forth in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007), and determines an appropriate
sentence. Davenport, 445 F.3d at 370. If a district court imposes
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a sentence outside the Guidelines range, the court must state its
reasons for doing so. Hughes, 401 F.3d at 546. This court will
affirm a post-Booker sentence if it is within the statutorily
prescribed range and is reasonable. Hughes, 401 F.3d at 546-47.
A sentence within the proper advisory Guidelines range is
presumptively reasonable. United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); see Rita v.
United States, 127 S. Ct. 2456 (2007).
At the re-sentencing hearing, the district court imposed
an obstruction of justice enhancement pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 3C1.2 (2003).* According to the
presentence report, Santos and his co-defendant were engaged in a
high-speed chase following the robbery, during which they struck
fourteen vehicles in an attempt to cause an accident and block off
the police pursuit. Santos did not object to these facts as
detailed in the presentence report, nor has he contended that there
was an insufficient factual basis to support the enhancement.
Further, the court relied on evidence elicited at Santos’ trial
regarding the high-speed car chase. Accordingly, we find that the
district court did not err in determining that the two-level
enhancement was supported by a preponderance of the evidence.
*
Pursuant to USSG § 3C1.2, a two-level enhancement is imposed
if “the defendant recklessly created a substantial risk of death or
serious bodily injury to another person in the course of fleeing
from a law enforcement officer.”
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As to whether the district court erred in refusing to
depart below the Sentencing Guidelines range, the court did not
mistakenly believe it lacked jurisdiction to depart; therefore, its
decision not to depart is not subject to appellate review. See
United States v. Quinn, 359 F.3d 666, 682 (4th Cir. 2004) (citing
United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990)); see
also United States v. Cooper, 437 F.3d 324, 333 (3d Cir. 2006)
(collecting cases adopting this rule following United States v.
Booker, 543 U.S. 220 (2005)). Moreover, in imposing Santos’
sentence, the district court appropriately treated the Guidelines
as advisory, considered the relevant factors under 18 U.S.C.A.
§ 3553(a), and sentenced Santos at the low end of the properly
calculated Guidelines range. We discern no reason to conclude that
the district court’s decision to impose a sentence within the
Guidelines range was unreasonable.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm Santos’ sentence. This court requires counsel inform her
client, in writing, of his right to petition the Supreme Court of
the United States for further review. If the client requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for leave
to withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. We dispense with oral
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argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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